102 Ark. 187 | Ark. | 1912
(after stating the facts). The complaint alleges that M. P. Carpenter showed to the plaintiff a certain tract of land in Mississippi County, covered with merchantable timber, and represented to him that said land and timber was his property. That plaintiff was ignorant of the location of the timber, and believed that same was located on said land as represented to him by said Carpenter, “although said Carpenter, at the time he made such representation, well knew that the timber shown to this plaintiff was on lands belonging to the United States, and was a part of what is known on the Government plats and maps as ‘ Round Lake, ’ and is a tract of unsurveyed territory. ” That plaintiff relied upon the false and fraudulent representations so made, and conveyed to said Carpenter’s wife, Catherine Carpenter, the other defendant, at his request, the lot in Richards’ Addition to Blytheville, in consideration of the sale and conveyance by Carpenter of all the merchantable timber growing on certain lands in Mississippi County, except the oak, describing the lands, and that the said M. P. Carpenter falsely and fraudulently represented to him, the said plaintiff, that the timber shown to him was on the above-described land. That he erected a sawmill at great expense near the land and after cutting a small amount of timber therefrom was stopped by the Government inspectors. Also offered to relinquish to Catherine Carpenter any rights which he may have against the timber and asked that the title to the lot be divested out of Mrs. Catherine Carpenter and conveyed to him. That defendants be compelled to reconvey said house and lot to the plaintiff and for all general relief.
We think it is sufficiently alleged that the defendant, M. P. Carpenter, falsely and fraudulently represented to plaintiff that he was the owner of certain lands, and that the timber shown by the defendant before the conveyance thereof to plaintiff was situated upon said lands, the ones described in the complaint, that such representation was material to the making of the contract, and an inducement therefor, and that the plaintiff relied upon the truth of such representation, as it was expected and intended he should do, by the defendant, when it was so knowingly made, to his injury. The position of the parties was such that the plaintiff had the right to rely upon the truth’ of the representation, as it is alleged he did do, in conveying the lot in question, which conveyance is now sought to be set aside and cancelled. The complaint is sufficient. Neely v. Rembert, 71 Ark. 98.
It may be that the complaint is indefinite and not altogether certain, but such a defect could have been reached by a motion to make it more definite and certain and not by demurrer. The court erred in sustaining the demurrer, and the judgment is reversed and the cause remanded with directions to overrule it and for further proceedings.
